In Rhodin v Coles Supermarkets Australia Pty Ltd [2019] ACTSC 207, the ACT Supreme Court delivered a substantial verdict against Coles in favour of a delicatessen attendant following a slip and fall on ice in a seafood cool room.
The case highlights the importance of employers properly documenting and acting upon OHS complaints. It also demonstrates the significant hurdles employers face to rebut liability or quantum evidence from claimants because they generally have a much better reason to recall key facts.
The Claim
The plaintiff alleged that in May 2014, she observed ice on the floor of a cool room caused by a leak from two tubs. She alleged she reported this at that time.
In June 2014, the plaintiff slipped on ice on the same floor injuring her wrist. She did not stop work or receive first aid but did apparently report the incident.
The plaintiff continued working until November 2014. The plaintiff and her partner gave evidence that, over this time, she was in constant pain but did not mention it to her supervisors because she feared she would lose her job.
The plaintiff ceased work in November 2014. Her employment was terminated by Coles in February 2017 because there was no reasonable prospect of her resuming her pre-injury duties. She has not worked since.
The plaintiff suffered little in the way of objectively verifiable pathology. She claimed to be unable to return to any work, including a previous job as a property manager.
The Decision
The Court found that Coles had breached its duty of care in failing to have a system to prevent liquid falling onto the floor and to remove hazards after they had been reported. The plaintiff's evidence as to prior complaints of water leakage was accepted in circumstances where Coles was unable to lead evidence (documentary or otherwise) to the contrary.
There was no finding of contributory negligence.
In terms of damages, the court found the plaintiff had developed a significant pain disorder. In making this finding, the court accepted the plaintiff's subjective reporting of ongoing pain despite an absence of objective signs or pathology or ongoing documented reports of pain. It preferred the plaintiff's evidence over that of a co-worker who could not recall complaints of pain finding that she would have been much more aware of her own condition and have taken a greater interest in that condition.
The parties were ordered to calculate damages in accordance with the Court's findings. However, these findings were significant in that they included a finding that the plaintiff was entitled to loss of income at her pre-injury rate of $590 to retirement age discounted by just 15% for contingencies as well as a significant award for future treatment and home care of $198 per week to age 80.
Comment
Rhodin highlights the importance of documenting
complaints about OHS issues and comprehensively investigating
accidents when they occur, even when the incident might seem
minor.
This case also highlights that courts will readily accept
subjective reporting as indicative of ongoing work restrictions
where the claimant gives consistent and credible evidence.
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